Holmes v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 1/24/2014. (PSM)
2014 Jan-24 PM 02:24
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
JACKIE C. HOLMES,
CAROLYN W. COLVIN,
Commissioner of Social Security,
) Case No. 5:11-CV-2605-AKK
Jackie C. Holmes brings this action pursuant to the provisions of section
205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), seeking
judicial review of a final adverse decision of the Commissioner of the Social
Security Administration (the “Commissioner”) denying her application for Title II
disability benefits. Holmes timely pursued and exhausted her administrative
remedies available before the Commissioner. Accordingly, this case is now ripe
for judicial review under 205(g) of the Act. Based on the court’s review of the
record and the briefs submitted by the parties, the decision of the Commissioner
is due to be affirmed.
I. STATUTORY AND REGULATORY FRAMEWORK
In order to qualify for disability benefits and to establish entitlement for a
period of disability, a claimant must be disabled. The Act defines disabled as the
“inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than twelve months . . . .” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i). For
the purposes of establishing entitlement to disability benefits, “physical or mental
impairment” is defined as “an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
In determining whether a claimant is disabled, Social Security regulations
outline a five-step sequential process. 20 C.F.R. § 404.1520 (a)–(f). The
Commissioner must determine in sequence:
whether the claimant is currently employed;
whether she has a severe impairment;
whether her impairment meets or equals one listed by the
whether the claimant can perform her past work; and
whether the claimant is capable of performing any work in
the national economy.
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993); accord McDaniel v. Bowen,
800 F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied Steps One
and Two, she will automatically be found disabled if she suffers from a listed
impairment. If the claimant does not have a listed impairment but cannot perform
her past work, the burden shifts to the Secretary to show that the claimant can
perform some other job.” Pope, 988 F.2d at 477; accord Foot v. Chater, 67 F.3d
1553, 1559 (11th Cir. 1995).
In the present case, Holmes is seeking Title II disability insurance benefits
alleging disibility beginning April 6, 1999. R. 21. Based on Holmes’ earnings
records, she has sufficient quarters of coverage to remain insured through
September 30, 2000. Id. Therefore, Holmes must establish that she became
disabled on or before September 30, 2000. See 42 U.S.C. § 423(d)(1)(A); Wilson
v. Barnhart, 284 F.3d 1219, 1226 (11th Cir. 2002). Because Holmes filed her
application after her date last insured (“DLI”), she must also establish that she
was continuously disabled until one year prior to September 11, 2008, the date
she filed her application. See Wilson, 284 F.3d at 1226.
The ALJ determined Holmes met the first test, but concluded she did not
have a severe impairment through September 30, 2000. Therefore, he found
Holmes was not disabled within the meaning of the Act.
II. STANDARD OF REVIEW
The sole function of this court is to determine whether the decision of the
Commissioner is supported by substantial evidence and whether proper legal
standards were applied. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). To that end, this court “must scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.” Id.
(citations omitted). Substantial evidence is “such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. This
court may not decide the facts anew, reweigh the evidence, or substitute its
judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). Even if the court finds that the preponderance of the evidence is
against the Commissioner’s decision, the court must affirm the Commissioner’s
decision if it is supported by substantial evidence. Ellison v. Barnhart, 355 F.3d
1272, 1275 (11th Cir. 2003).
Holmes raises two points of error: (1) that the ALJ erred in finding she did
not suffer from a severe impairment prior to her DLI, doc. 7 at 21, and (2) the
ALJ improperly rejected the opinion of Dr. James Hoover, id. As shown below,
both contentions miss the mark.
The ALJ did not err in finding that Holmes did not suffer from a
To qualify as disabled, Holmes must have an impairment, or combination
of impairments, that is severe. A severe impairment is one that “significantly
limits” a claimant’s “physical or mental ability to do basic work activities.” 20
C.F.R. § 1520(c). Holmes failed to make this showing.
At her ALJ hearing, Holmes testified she has had severe diarrhea since
1979, and that in 1999 “the severe diarrhea was extensive.” R. 46. She also
testified she had severe abdominal pain in 1999 that she rated as an eight, on a
scale of one to ten, while on medications. R. 47. After discussing the medical
evidence prior to Holmes’ DLI, the ALJ concluded Holmes had medically
determinable impairments that could reasonably be expected to cause some
symptoms. R. 27. However, the ALJ determined that Holmes statements
regarding her pain were not credible to show she had a severe impairment prior to
her DLI. Id. He found the evidence in the record did not support Holmes’
allegations of disabling symptoms during the period under consideration. Id. The
ALJ also found Holmes’ daily activities prior to her DLI were inconsistent with
her allegations of total disability, and that during the period under consideration,
Holmes was able to “perform independent activities of daily living” and “took
care of her own personal needs, grooming and hygiene.” Id. The substantial
evidence supports the ALJ’s decision.
The medical records show that Holmes obtained sporadic treatment for
abdominal pain and other gastric problems prior to her DLI. In his discussion of
the medical records, the ALJ noted Holmes reported she continued to exercise an
hour daily and had no significant complaints of colitis when she visited Dr.
Willard W. Mosier on February 25, 1997. R. 26, 541. The record shows next that
on January 22, 1998, Holmes visited Dr. Thomas G. Preston with complaints of
back pain, abdominal pain, and nausea. R. 842. Holmes reported occasional mild
heartburn and indigestion, but denied vomiting or changes in bowel habits. R.
843. Dr. Preston’s diagnostic impression noted a “remote history of colitis.” R.
844. Dr. Preston suspected Holmes might have gallstones. R. 842. Further testing
showed the presence of gallstones, and Holmes underwent a laparoscopic
cholecystectomy on January 28, 1998. R. 566–68.
On April 6, 1999, Holmes visited for the first time Dr. James Hoover, an
internal medicine specialist, for chest pain and palpitations. R. 508–10. Prior to
visiting Dr. Hoover, Holmes sought treatment in the ER after she became lightheaded while doing aerobics. R. 508. Dr. Hoover noted Holmes had minimal
symptoms from mitral valve prolapse, probably because she “exercises routinely”
and was “very diligent about that.” Id. Dr. Hoover also noted Holmes’ past
medical history included “considerable upper GI discomfort with belching and
indigestion,” and that Holmes reported continued “upper abdominal discomfort
and dyspepsia that sounds like fairly typical gastritis or ulcer.” Id. Dr. Hoover
assessed Holmes with chronic upper gastrointestinal discomfort and dyspepsia,
and a history of lower abdominal discomfort, which he found suggestive of
irritable bowel syndrome. R. 509. Dr. Hoover prescribed medications to treat the
upper gastrointestinal problems and indicated that he would refer Holmes to a
gastroenterologist if she did not improve. Id. Thereafter, on April 12, 1999,
Holmes called Dr. Hoover’s office to report a vomiting spell and that she had a
very sharp pain in the pit of her stomach. R. 510. Dr. Hoover prescribed
medication and referred Holmes to a gastroenterologist. Id.
Three days later, Holmes saw Dr. Kenneth M. Sigman, a gastroenterologist.
R. 522–23. Dr. Sigman suspected Holmes might have irritable bowel syndrome
and made adjustments in Holmes’ medication. R. 523. Although Dr. Sigman
indicated for Holmes to follow-up with him in 3 to 4 weeks for a graded exercise
test,1 id., there are no further treatment notes from Dr. Sigman prior to Holmes’
The next medical entry occurred on May 25, 1999, when Holmes visited
Dr. Mosier.2 R. 539. Dr. Mosier noted Holmes had “no complaints of significant
flair of colitis” since her last visit.3 Id. The next day, Holmes failed to return to
Dr. Hoover for her follow-up visit. R. 511. The final treatment note from Dr.
Hoover prior to Holmes’ DLI documents a phone call from Holmes complaining
of body aches and nausea. R. 975. Dr. Hoover prescribed Tamiflu. Id. The next
treatment note in the record from Dr. Hoover is dated June 18, 2002, which was
after Holmes’ DLI. R. 677–79. At that time, Holmes complained of daily nausea
for almost a year. R. 677. The note states Holmes reported “some intermittent
diarrhea now, but it’s not a major problem.” Id. The diagnostic assessment
Dr. Hoover planned to do a graded exercise test on Holmes because of her recent
episode of chest pain. R. 509.
The ALJ incorrectly identified this treatment note as a follow-up visit to Dr. Sigman. R.
The court assumes that Dr. Mosier was referring to Holmes’ last visit to his office on
February 25, 1997, since he and Dr. Sigman are not in the same practice.
included daily nausea and a history of ulcerative colitis with no recent follow-up.
The medical evidence discussed by the ALJ shows Holmes sought only
sporadic treatment for her gastrointestinal problems prior to her DLI. That
evidence shows Holmes did not follow-up with Drs. Hoover or Sigman after her
initial visits. In discussing Dr. Hoover’s treatment notes, the ALJ observed
Holmes reported to Dr. Hoover that she exercised diligently, helped her husband
with his business, and took care of her in-laws, and the ALJ specifically referred
to those activities in finding Holmes’ testimony was not credible.4 R. 26–27, 509.
The ALJ’s findings are consistent with the medical evidence which shows that
Holmes reported to Dr. Mosier on May 25, 1999, that she had not had a
significant flair of her colitis since her last visit, and that Holmes did not seek
treatment for significant gastrointestinal distress from April 1999 until after
In this circuit, “a three part ‘pain standard’ [is applied] when a claimant seeks to
establish disability through his or her own testimony of pain or other subjective symptoms.”
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995).
The pain standard requires (1) evidence of an underlying medical condition and either
(2) objective medical evidence that confirms the severity of the alleged pain arising
from that condition or (3) that the objectively determined medical condition is of
such a severity that it can be reasonably expected to give rise to the alleged pain.
Id. (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). If an ALJ discredits a
claimant’s subjective complaints, he must give “explicit and adequate reasons” for his decision.
See id. at 1561-62. “A clearly articulated credibility finding with substantial supporting evidence
in the record will not be disturbed by a reviewing court.” Id. at 1562.
September 30, 2000, her DLI. Therefore, the ALJ’s finding that the evidence does
not show Holmes had a severe impairment prior to her DLI is reasonable and
supported by substantial evidence.
The ALJ did not improperly reject the opinions of the plaintiff’s
Holmes’ second argument on appeal is that the ALJ improperly rejected the
opinions of Dr. Hoover expressed in letters written in 2009 and 2010. Doc. 7 at
21. On July 27, 2009, Dr. Hoover wrote a letter stating he had treated Holmes
since 1999, that Holmes “gave a history at that time of considerable upper GI
discomfort with belching and indigestion, waking up with intermittent epigastric
pain in the middle of the night and being on medication for years for this. She
also had some intermittent diarrhea,” and that Holmes “has continued to have
diarrhea probably exacerbated by the upper GI issues. She has also had multiple
other medical problems which contribute to her being disabled at this point.” R.
637. The letter concludes: “However, the one issue that has been present
throughout the 1990's has been the GI issue that really progressed to the point
where she could not eat any significant amount without having significant
problems.” Id. Dr. Hoover wrote a second letter on July 13, 2010, in which he
This letter is to update the letter sent to you on July 27, 2009. At that
time I stated that Ms. Holmes had been a patient of mine since 1999
and had multiple GI issues that really caused her to be unable to work
for some time prior to me seeing her.
R. 1055. In addition, Dr. Hoover also completed physical capacity and pain
assessment forms on June 9, 2010, and November 8, 2010. R. 960–65, 1202–09.
Holmes contends that Dr. Hoover’s letters establish her disability, and
asserts that the ALJ erred when he gave Dr. Hoover’s letters little weight.
According to the ALJ:
Little weight are given to these opinions because they are internally
inconsistent with the medical evidence during the period under
consideration. Specifically, in April 1999, Dr. Hoover diagnosed the
claimant with chronic upper gastrointestinal discomfort and dyspepsia
as well as history of lower abdominal discomfort, suggestive of irritable
bowel syndrome, and adjusted her medication. Moreover, Dr. Hoover
noted the claimant exercised daily, helped her husband with his
business, and took care of her in-laws. (Exhibits 10F, 22F and 23F).
Further, in May , Dr. Sigman5 noted that the claimant was stable
with no complaints of colitis flair (Exhibit 10F). While Dr. Hoover may
be sympathetic to the claimant’s plight, the evidence does not show that
the claimant was precluded from work through the date last insured.
R. 27 (alteration and footnote added). The ALJ’s articulated reasons constitute
“good cause” for giving Dr. Hoover’s opinions little weight.6 Dr. Hoover’s
This treatment note was actually from Dr. Mosier. R. 539.
In considering whether an ALJ has properly rejected a treating physician’s opinion,
“[t]he law of this circuit is clear that the testimony of a treating physician must be given
substantial or considerable weight unless “good cause” is shown to the contrary.” Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). “Good cause” exists when the evidence does
retrospective opinions about Holmes’ condition prior to her DLI are indeed
inconsistent with his treatment notes from 1999, which show Holmes remained
active and did not seek follow-up care for her gastrointestinal problems.
Moreover, Dr. Hoover’s opinions are not bolstered by other medical evidence
prior to Holmes’ DLI. In fact, the evidence shows that Holmes failed to follow-up
with Dr. Sigman for treatment of her upper gastrointestinal problems, which
belies Dr. Hoover’s opinions regarding the purported severity of Holmes’
condition. In short, the lack of treatment for significant gastrointestinal problems
between April 1999 and September 30, 2000, also indicates Holmes’
gastrointestinal problems were not severe during the year and one-half
immediately prior to her DLI. Therefore, substantial evidence supports the ALJ’s
decision to give little weight to Dr. Hoover’s opinions.
Substantial evidence supports the ALJ’s finding that Holmes did not have a
severe impairment prior to her DLI. The ALJ had good cause for giving Dr.
Hoover’s opinions about Holmes’ ability to work prior to her DLI little weight.
His decision to give Dr. Hoover’s opinions little weight was supported by
not bolster the treating physician’s opinion, a contrary finding is supported by the evidence, or
the opinion is conclusory or inconsistent with the treating physician’s own medical records. Id.
substantial evidence and in accord with proper legal standards. Accordingly, the
decision of the Commissioner must be affirmed. An appropriate order will be
entered contemporaneously herewith.
DONE this 24th day of January, 2014.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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